Media & Communications Policy

Media & Communications Policy

Issues & Developments in the Realm of Communications and Media Policy & the First Amendment

The WAPO/Koch Brothers/Keystone XL Pipeline Affair

Posted in Journalism, Media criticism

The recent Washington Post story linking the Koch brothers to the Keystone XL Pipeline, via their leaseholds on acreage in the Alberta, Canada, tar sands, is interesting because of what was said in the piece, and because of what its critics have said about it.  But mostly it’s interesting because it’s the kind of flap whose resolution will be an early indication of the kind of editorial product Jeff Bezos wants to own.

In a nutshell, the Post piece, co-authored by reporters Steven Mufson and Juliet Eilperin, ID’d the Koch brothers as “the biggest lease holders in Canada’s tar sands,” and then suggested that this fact would “inflame the already contentious debate about the Keystone XL Pipeline.”  The authors admit that their article was based on a report produced by a leftwing organization called the International Forum on Globalization, and that it was IFG’s executive director who provided the material on which the WAPO article was based.

Curiously, the co-authors also go on to say in the piece that they don’t really know how many acres of land the Kochs own in Canada, or what they are doing there, and that in fact “the link between Koch and Keystone XL is indirect at best.”

Given that all of this is revealed in the first five paragraphs of the article, one could wonder why the piece was written in the first place, not to mention why it then goes on for another 29.  One answer to that question was provided by lawyer John Hinderaker, who published on PowerLine a devastating rebuttal of the Post piece, complete with evidence that the Kochs are not the largest leaseholders in the tar sands, that they have no interest in the Keystone Pipeline, and that in fact construction of the pipeline would actually hurt their financial interests.  Hinderaker also says this:

Why would the Washington Post embarrass itself by republishing a thoroughly discredited attempt to link the Koch brothers to the Keystone Pipeline?  Because that is a Democratic Party talking point, and the Post is a Democratic Party newspaper.

Writing in the Pittsburgh Post-Gazette, Jack Kelly picks up on this theme, and concludes with the suggestion that “If Jeff Bezos, the Washington Post’s new owner, wants to run a newspaper rather than a Democrat propaganda sheet, he has some housecleaning to do.”

In the face of this kind of criticism, reporter Mufson replied with one of the strangest nonsequiturs in memory:

The PowerLine article, and its tone, is strong evidence that issues surrounding the Koch brothers political and business interests will stir and inflame public debate in this election year.  That’s why we wrote the piece.  (Emphases added)

As Jonah Goldberg subsequently wrote, “By this logic any unfair attack posing as reporting is worthwhile when people try to correct the record.  Why not just … accuse the Kochs of killing JFK or hiding the Malaysian airplane?”

Beyond the facts in dispute there is also the unseemly matter, as Hinderaker describes it, of Judith Eilperin’s (undisclosed) marriage to a man who writes on climate policy for the decidedly partisan Center for American Progress, something that prompts Hinderaker to also wonder if there was any coordination between Eilperin and CAP, or between her and any Democratic congressmen or staff.

Many people are closely watching the Post these days for any sign of a change in the editorial stance in the paper since Bezos acquired it, and there are those who believe they may have spotted something in the decision of the paper to start publishing the libertarian-leaning Volokh Conspiracy blog (which itself questioned the Mufson/Eilperin piece), and in the paper’s decision to pass on the editorial ambitions of Ezra Klein.

But both of those matters concerned opinion writing rather than news reporting, whereas the Mufson/Eilperin article was published as news.

As mentioned here, it would be a surprise if Bezos bought the Post in order to push any kind of political or ideological agenda, but as a businessman he is known to believe in giving customers what they want.  And if that’s the case the article in question must give him pause.

Put it this way:  When the Post was just a print newspaper, distributed mostly in the greater D.C. area with its large majority of registered Democrats, it made business sense to publish a paper that leaned liberal and Democratic.  But in the digital age the paper has the challenge of appealing to people throughout the country, including Republicans and conservatives, few of whom would be attracted by news stories like that of Mufson and Eilperin.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Orts and All

Posted in Digital technology, Journalism, Media criticism

Facebook Buys the Oculus Rift.  As mentioned here a few months ago, the video game trade press has been wildly enthusiastic about the development of the VR headset called Oculus Rift.  And why not?  By all reports the OR headset is a significant leap forward in its immersive qualities, thereby providing a more life-like environment.

But there’s a difference between the creation of ever more realistic video games, on the one hand, and the kind of widespread societal change that VR’s enthusiasts predict.  Before VR can affect the way we live, work, and interact, many things will have to come together in addition to the perfection of the technology.

Things like price, availability, the regulatory environment, and widespread consumer interest in spending large amounts of time in the medium would all have to be successfully negotiated before VR could become profoundly life altering, and even then there might arise serious societal problems in consequence.

These caveats aside, however, there’s nothing more promising on the technological horizon than Virtual Reality, a fact that has gained immense corroboration by the news that Facebook has just paid $2 billion in cash and stock to acquire Oculus!

Time will tell whether VR, with or without an Oculus headset, can grow beyond the video game industry, but it’s a telling measure of Facebook’s futuristic thinking, and willingness to take risks, that it has made this investment.

David Brock Does Politico.  If, like millions, you’re unfamiliar with the person, or the even more bizarre life story, of one David Brock, founder of the malevolent outfit called Media Matters for America, you must not be reading Politico.  This, because Politico reporters fall all over themselves chronicling the gentleman’s every move.

Witness, for instance, Politico’s online reportage on March 25, featuring not one but two pieces.  From journalist Maggie Haberman comes an article breathlessly telling us about the “long journey” Brock has heroically taken from being a paid Hillary Clinton nemesis to an ally.

And on the same day, Politico reporter Katie Glueck penned an (unwittingly) hilarious piece in which she reports that Brock urged the end of “political smutmongers,” singling out by example Rand Paul for his criticism of Bill and Hillary Clinton.

David Brock’s Media Matters exists solely to try to silence, by whatever means necessary, conservative media outlets and individuals.  In an earlier age such as this might have earned Brock labels like “jackboot” or “book burner,” but not today, and certainly not in Politico.  So thanks a lot Maggie and Katie.

Sen. Cornyn Opposes Shield Law.  From Breitbart comes word that Sen. John Cornyn (R-Texas) plans to whip the Republican Caucus in opposition to the Free Flow of Information Act, aka the federal shield law.  Sen. Cornyn argues, as he did last fall, that passage of this legislation would amount to a “licensing” of journalism, and work against the interests of bloggers and conservatives.

Sen. Cornyn is wrong about this, but rather than rehash all the errors in his argument, better just to read the piece (Five Myths About the Federal Shield Law) written by communications lawyer Kurt Wimmer, and published here in October.

                                   

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Global Warming and the Chilling of Free Speech

Posted in First Amendment, Media criticism

One of the most important, if underreported, defamation cases in recent memory is being mounted by Prof. Michael Mann.  The creator of the controversial “Hockey Stick” graph, Mann is a leading figure among “global warming” scientists, and the targets of his lawsuit are prominent conservatives – the writer Mark Steyn, National Review magazine, the public policy outfit Competitive Enterprise Institute (CEI), and a person who wrote for a CEI publication.

The gravamen of Mann’s suit is that the defendants defamed him by their published comments.  As an example, CEI stated in its initial blog post that Mann “has molested and tortured data in the service of politicized science,” while National Review said that “Mann was the man behind the fraudulent climate-change ‘hockey-stick’ graph, the very ringmaster of the tree-ring circus.”  Mann further argues that the defendants’ global warming skepticism derives from their financial and political interests.

Successful defamation suits, particularly for a “public person” in a place like Washington, D.C., are very hard to win.  In part, this is because the District of Columbia (along with 28 states) has enacted an anti-SLAPP law that is intended to discourage “strategic lawsuits against public participation,” where the goal of the plaintiff isn’t to win but to intimidate and burden  defendants with the cost of their legal defense.

The other reason such suits are hard to win is because of the substantial and vital editorial latitude given the media, courtesy of the First Amendment.  This explains why the Reporters Committee for Freedom of the Press (RCFP), joined by 18 other media organizations, including such as Politico, the Washington Post, Dow Jones & Co., and the National Press Club, early on filed an amicus brief in support of the defendants.

For what should have been a relatively simple case, quickly yielding a dismissal of Mann’s suit, Mann vs. Steyn, et al., has been dragging on since fall of 2012.  In part, this is because of appeals of earlier procedural rulings, and also because Mann had to file an amended complaint.  Bottom line: It’s not clear even now if the case will get to the trial stage.  In fact it’s not even clear which court will act next in this case – could be the trial court or the D.C. Court of Appeals.

Adding to the confusion is Mark Steyn’s unhappiness with National Review’s legal strategy, such that he has now dropped out of participation with NR’s lawyers, and is currently representing himself.

So this is a snapshot in time of the murky legal case: Considerably less murky, however, is the larger picture – the one that is painted outside the courtroom, and that has implications not just for the plaintiff and defendants in this case, but for everyone who values freedom of speech.

There is perhaps no issue today that is more hotly debated than global warming, and contrary to Mann’s opinion, this debate rages on not because of the ideological or financial interests of some of the skeptics.  The debate rages on because of so many unanswered questions.

There’s been no global warming for at least 15 years.  Why is that?  Some suggest the heat is hiding at the bottom of oceans.  But whether it’s “hiding” there, or in Al Gore’s house, doesn’t that fact, by itself, prove that the computer models said to predict specific warming timelines are unreliable?

Then there are the vital related questions – beyond the expertise of climate scientists – like the economic impacts of global warming, and its prospective amelioration.  What do climate scientists know about engineering, economics, agronomy, or scores of other disciplines of the sort needed to recommend specific energy policies?

Let’s assume, just for the sake of argument, that Mann and the warming prophets are right: that anthropogenic warming is occurring; that its net results demand action; that we know what that action should be, and that whatever we did would provide societal results that, on balance, were preferable to doing nothing.

In that case, wouldn’t it be a good idea for climate scientists to attempt at all costs to persuade the public and policymakers to their point of view?  Wouldn’t it seem that defamation suits against people who disagree with you is counterproductive?

Whatever the facts of “climate change,” there’s evidence that few people take global warming seriously. Witness, for instance, the recent WSJ/NBC News poll, which found that, of 13 issues people were asked to rank by priority, “addressing climate change” was dead last.

Writing a comment in reply to a predictable global warming rant in Britain’s Guardian newspaper, one reader volunteered this:

It isn’t the big corporations or dissident scientists that are the problem, it’s the pesky public.  They simply don’t believe the climate change bandwagon.

Why?  Well, one of the biggest reasons is the zealotry of climate change supporters. Arguments that should be factual, with room for disagreement, have become intolerant slanging sessions, with insult and invective traded in place of reason. Even the phrase “deniers” is redolent of a religious movement more than scientific debate….

If climate change believers want to win more support, then it’s time to step back from the barricades and engage with the average man on the street.  Win the argument through persuasion, not rant. We’ve all had enough of that.

                                               

Patrick Maines is president of The Media Institute, and a former assistant publisher of National Review. The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Keeping It Real: The Oculus Rift and Virtual Reality

Posted in Digital technology

In January of this year came news, to excited reviews in gaming publications, of the imminent release of a new Virtual Reality headset called Oculus Rift.  As a headline in a British newspaper put it: “Virtual reality just got real: Could the Oculus Rift change the way we play, work and learn?

The short answer to that question is no.  The Oculus Rift will not, by itself, have that impact, but Virtual Reality, writ large, perhaps could.  The point is that it’s going to take a lot more than sophisticated display gear to do the trick.

In the terrific book Infinite Reality, published just a few years ago, authors Jim Blascovich and Jeremy Bailenson assert that Virtual Reality has in recent years “accelerated at an astounding pace,” such that “in a few decades the norms of social interaction, war, education, sex, and relationships will change drastically.”

But if VR is ever to achieve the kind of cultural revolution that its enthusiasts predict, it will have to be marked by a number of things that are not here now, and by conditions that may not obtain even if and when the technology is perfected.

First and foremost, though, is the technological necessity that VR be fully immersive and received by the senses as indistinguishable from real life.  People experience reality through their senses of sight, sound, touch, smell, and taste; for VR to be fully immersive it will have to provide at least the first three of these.

This means that people entering virtual reality will need gear (like 3D stereoscopic headsets, and full body, or its equivalent, data suits) that provide (through avatars) representations of themselves and other people that look exactly like real people rather than cartoon characters.  This gear will also have to provide sounds and movement that are perfectly reproduced and, crucially, the ability to feel those things their avatars touch.

One of the more difficult technological problems is called latency, which is the lag time when a person turns his head in VR before the new scene is rendered.  If it happens too slowly the effect is unreal and causes motion sickness.  Indeed, according to an account in the Guardian, some gamers report that even the Oculus Rift induced nausea within 10 minutes of use.

But a dramatic cultural shift would require more than perfect technology: The requisite hardware, software, and telecommunications equipment would have to be widely available and affordable.  If availability or price had the effect of limiting VR just to those places where it’s mostly found now – university labs and certain government facilities, like the Pentagon – VR would fall far short of being a cultural tsunami.

Yet another obvious condition would be whether a sufficient number of people wanted to spend real time in “cyberspace,” the name for VR coined by the brilliant science fiction writer William Gibson.  For widespread cultural effects, large numbers of people would have to spend lots of time in VR.  Otherwise the whole thing might amount to something no more culture- or life-altering than an occasional real-life bungee jump, or white-water rafting trip.

There’s another condition that would have to obtain for VR to be all it could be.  But this one, judging by the literature available, is not so obvious even to the experts.  This condition lies in the nature of the restraints and imperatives, in law and regulation, which governments in the real world will inevitably seek to impose on Virtual Reality.

Whether premised on an asserted need to “protect the children,” or help close the “income inequality” gap, or promote “healthy lifestyles,” there is no chance that governmental bodies will leave VR alone.

Even today, for instance, the national debate over privacy – brought to a head by the overreach of the NSA, and negative effects of social media – is reaching a point where Congress, the courts, and/or agencies like the FCC may soon act.

Assume for a minute, however, that all of the technological, economic, and regulatory issues can be overcome, and that software programmers create worlds that are sufficiently complex and attractive. In that case, one can see how any number of things might take place in Virtual Reality.

Things, for instance, like commerce.  Of course there would need to be a wide variety of services offered and some kind of widely accepted digital currency, with a relatively stable exchange rate in the real world, into dollars, pounds, euros, etc.  Early prototypes of this might be Bitcoins, or the so-called Linden dollars that are used as currency in Second Life.

Other obvious attractions in Virtual Reality would be education, medicine, tourism, and games.  Imagine the growth in the already substantial industry of online gambling.  In a fully immersive VR environment, one’s avatar could look around the table at the other players in search of what gamblers call “tells.”

And then, of course, there is sex.  According to Blascovich and Bailenson there’s a lot of sex going on even today in Second Life, though there’s no sense there of touch, and the environment is just observed on a computer screen.

Imagine what would happen in a deeply immersive virtual world where everyone was beautiful, and where there was a sensation of feeling, through some kind of data suits, in the users’ entire bodies.  As reported in Infinite Reality: “As virtual reality becomes more immersive, virtual sex will become more and more … satisfying.  Indeed, “teledildonics” is an emerging field that incorporates haptic devices, those capable of transmitting virtual touch, into virtual sexual experiences.”

For certain people, and certain applications, Virtual Reality would be overwhelmingly attractive.  Consider, for instance, the handicapped.  In VR a quadriplegic confined in real life to a wheelchair would be able to present himself, through his avatar, as fit and healthy, and in addition be able to experience the sensation of walking and running!

People who will never have the money to travel the actual world could travel virtually not only to places they’ve never been, but also to places that nobody has visited, like the bottom of the sea, or a realistic reconstruction of a long-since destroyed city like Pompeii.

The benefits of VR are vastly – one could say infinitely – more numerous than have been described here. Indeed, one could write hundreds of pages just about the educational benefits alone.  But there would definitely be prospective downsides as would impact individuals and society alike.

This can be inferred by reading the literature, especially the academic books.  In many cases these books read as though they were as much about psychology (social psychology especially), or even philosophy, as about technology.  What is the brain?  How does the brain observe reality?  What is reality?

It’s a short distance from those kinds of questions to the development of ideas about some of the downsides of Virtual Reality.  What happens, for instance, to individuals and/or society if people decide that cyberspace is more attractive than the real world?  When, through their avatars in VR, they are more successful, more beautiful, and more socially connected than they are in the real world?

What happens to their interest in real-life issues like politics and the environment, or in their neighbors and family, when people spend most of their life in cyberspace?

As with most things in life, the actual impact of VR will likely come to rest somewhere in the middle of the range of hypothetical benefits and liabilities.  And for this reason, and also because of the digital handwriting on the wall (as with the extraordinary growth of cell phones, social media, and the Internet), it would be folly to try to stand in the way.  For better or worse, Virtual Reality of some advanced sort is coming our way.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

 

Net Neutrality Decision: A Welcome Development

Posted in FCC, Network Neutrality

Tuesday’s decision by the D.C. Circuit Court of Appeals, striking down the FCC’s so-called “net neutrality” regulations, is a welcome development.  As noted by many, these regulations amount to a solution in search of a problem, with the only lasting and real-world effects being the creation of the precedent of governmental oversight of the previously unregulated Internet.

Moreover, and as argued in this space a little over a year ago, there is an international dimension to net neutrality, as the existence of these regulations in the U.S.A. advances the agendas of countries like Russia and China in regulating the Internet through the International Telecommunication Union.

Writing today in the Wall Street Journal, former FCC commissioner Robert McDowell makes a convincing case that, for this reason too, the FCC should abandon any further attempts to promote net neutrality.

For the new FCC chairman, Tom Wheeler, this development threatens the very real prospect of becoming his signature activity for the duration of his term.  This, because if, at the urging of Internet companies like Google, plus the Obama Administration, Wheeler is importuned to try to resurrect the net neutrality rules, he basically has but two options.  One is to appeal the Circuit Court’s decision, and the other is to attempt to reclassify broadband provision as a “telecommunications service,” rather than an “information service,” something that would allow the imposition of net neutrality regs (and who knows what else) by the same authority that the FCC regulates telephone service.

But if Wheeler goes the reclassification route, it will set off congressional fireworks of a sort that will land him and the FCC in a protracted war with telecom companies, and Republican legislators, without any guarantee of success.

Still, one can only imagine the angst among the net neutrality crowd following yesterday’s decision. As reported in The Hill by Kate Tummarello, Internet companies have “pushed net neutrality with an almost religious fervor.”  Indeed, one of the most ardent pushers, the ludicrous organization called Free Press, coined the sophomoric slogan: “Net neutrality, the First Amendment of the Internet.”

So it’s not at all clear what the FCC’s next step will be, but suffice to say that the Circuit Court’s decision is going to make for some very interesting times there … and elsewhere.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

 

If It Walks Like a Duck….

Posted in Cable TV, Free speech

The storms occasioned by the comments of "Duck Dynasty" star Phil Robertson, and A&E’s suspension of him, mirror similar unhappy episodes in the media and on college campuses.  As noted here, and here, and here, and here, examples of similar instances of free speech intolerance are plentiful.

Indeed, colleges and the media, the two institutions that one would expect to be the most supportive of free speech and diverse opinion, are in fact among the least.

Because A&E’s decision was its alone, and not an act of government, this affair is not a First Amendment issue per se. Since the network owns the rights to the program it can do whatever it wants with it. But when such matters arise within companies that are part of the only industry protected by name in the Constitution, one would hope that there would be at least a rudimentary respect for the broader concept of freedom of speech.

This said, it’s understood that in an age in which speech police abound, anything done or said by an institution or individual may become the target of organized protests, and for the media this can mean campaigns directed at their advertisers. This, presumably, was a factor in A&E’s decision to suspend Robertson.

Even so, it’s hard to sympathize with the network.  For one thing, A&E’s apparent decision to air next season those episodes of the show already filmed before they banned Mr. Robertson smacks of transparent hypocrisy.

And then there’s this: Cable TV is filled with reality shows that feature everything from hog hunters and alligator slayers, to catfish noodlers and wilderness dwellers.  Were a magazine reporter to interview any of the stars of these shows on any subject touching on the socio-political, what percent of them  would say something as would give offense to someone?  Maybe all of them?

Of course that doesn’t bother networks like A&E, so long as these people don’t in fact speak about such things. Seen from this perspective, the casts of such shows are like performing monkeys, there to engage in their usual antics while the networks play the accordion.

Not for the first time, one of the most poignant comments to issue about this affair comes from Camille Paglia. As reported in the Daily Caller, Paglia sees in this kerfuffle another indication that “the culture has become too politically correct”:

To express yourself in a magazine in an interview – this is the level of punitive PC, utterly fascist, utterly Stalinist, OK, that my liberal colleagues in the Democratic Party and on college campuses have supported and promoted over the last several decades. This is the whole legacy of free speech 1960s that have been lost by my own party.

One need not agree with Paglia about PC’s roots in order to agree with her about its corrosive effect on the culture.  With respect to matters of free speech, political correctness comes with a smile on its face but jackboots on its feet.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Aereo and the Future of Content and Copyright

Posted in Broadcasting, Copyright, First Amendment, Satellite Communications

A case being petitioned for review by the Supreme Court will, if accepted, tell us a lot about the future of broadcasting. More importantly, it will tell us a lot about the future of all the content media, and of the nation’s copyright laws generally.

The case in question concerns the business practices of an outfit called Aereo, which streams for a fee over-the-air TV programming to the company’s subscribers.  Because this programming is delivered through the Internet, it is accessible when and where the subscriber wants it.  Sounds good, right?

Bu there’s a hitch.  Unlike cable and satellite systems, which pay the broadcasters for the right to retransmit their copyrighted programming, Aereo pays nothing. And how are they able to do this?  Well, that’s the heart of the Supreme Court petition filed last month by the four big broadcast networks, ABC, CBS, NBC, and Fox.

When cable and satellite operators distribute broadcast programming to their subscribers this is deemed a “public performance,” which is why those operators have to pay the broadcast copyright holders for the privilege.  When, however, an individual records a copyrighted program on his DVD this is deemed a “private performance,” and requires no compensation to the copyright holder.

Aereo’s business plan plainly exploits this public/private dichotomy by the simple device of installing tens of thousands of dime-sized antennas, each of which stream the over-the-air programming to Aereo’s subscribers individually, thereby qualifying, according to Aereo, as a private performance.

Lest you think for a minute that this is a triumph of engineering, rest assured it is not.  As noted by Rod Smolla, the lawyer who filed a brief for The Media Institute in support of the petition for review: “If a picture tells a thousand words, a thousand antennas tell the picture.”

Nor is Smolla the only person who sees through this scheme.  Denny Chin, an appeals court judge who was part of a panel that earlier ruled against an injunction against Aereo, wrote this in his stinging dissent:

The [Aereo] system employs thousands of individual dime-sized antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law. 

Because the Supreme Court agrees to review less than one percent of the cases brought before it, it’s no sure thing that Aereo will be reviewed, even though Aereo has declined to oppose the petition for review.  Much may depend on the decision in another appeals court, which is considering a case concerning a company with an Aereo-like setup.  If that court rules against the company, there will be a conflict between two appeals courts (the Second and Ninth circuits), something that would increase the chances that the Supreme Court would agree to review the case.

The importance of this case is not just whether broadcasters can derive revenue for their programs from third-party Internet distributors.  The importance is in what it will tell us about the future of all the content industries and of copyright itself.

To put it another way, you don’t have to be a fan of broadcasting (or Hollywood, or the recording industry, etc.) to have a high regard for copyright.  Like the First Amendment, copyright is enshrined in the U.S. Constitution, and in practice it is copyright that provides the incentive that leads to the creation of the content that the First Amendment protects!

Seen this way (and even acknowledging that there is always some tension between the First Amendment and copyright, usually over arguments about the reach of “fair use”), both of these concepts are not just important in their own right, they’re the opposite sides of the same coin.

Today, however, those industries that rely on copyright protection – the so-called content media like newspapers, magazines, motion pictures, recording companies, book publishers, and broadcasting – are being decimated by piracy and/or the copyright-skirting practices of Internet companies like Google.

Whether the Supreme Court reviews the case or not, Aereo won’t be the last word on the subject of copyright protection.  But if Aereo, or any company, can escape paying copyright fees simply by creating a service that turns on a technological sham like Aereo’s, it’s not just content producers that will suffer; it’s the content-consuming public and copyright law generally.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils. A version of this article appeared in the online edition of USA Today on Dec.16, 2013.

 

Attacking Free Speech On Campus

Posted in Free speech

The great and widening political divide in the land, marked by hyperbolic rhetoric and personal attacks, is rued by many.  And why not?  Most everyone would agree that ours would be a more serene and nurturing country if the political differences among us were not so great.

But it is what it is, and it’s precisely because of our differences about the correct social, economic, and foreign policies that it’s so important to protect the right to free speech for all, especially in our colleges and universities.

Unfortunately, that imperative is being honored these days more in the breach than the observance, often by student “progressives” who, in gestures not of tolerance or broad-mindedness but of the rankest kind of illiberalism, attempt to shut down campus functions and speakers with whom they disagree.

The latest example is the recent shoutdown of New York City Police Commissioner Ray Kelly, who was invited to speak at Brown University about the city’s “stop and frisk” policy.  After he was met with protesters who wouldn’t allow him to speak, the university pulled the plug.

As reported in the Huffington Post, one of the students who helped organize the protest said that when the university declined to cancel the lecture, “we decided to cancel it for them.”  It was, this student said, “a powerful demonstration of free speech.”

Afterwards, the university president said she would convey to Kelly her profound apologies, but it’s unclear how deeply the commissioner will accept them since at a subsequent campus gathering the professor who invited Kelly to speak apologized for doing so, an act reminiscent of a similar affair at Fordham University when, under pressure from students, faculty, and the administration, the campus Young Republicans were coerced into canceling a speech by conservative writer Ann Coulter.

It’s not clear which is worse, the shouting down of people with differing views, or the Orwellian language employed to justify such actions.  What the students did at Brown was a “powerful demonstration of free speech” in the same way that mugging someone is a powerful demonstration of free will.

Happily, there’s been commentary about this affair that gives hope for the future of free speech.  Two such examples are a Daily Beast piece written by Peter Beinart, and a similar commentary published in the Huffington Post by Greg Lukianoff.

What Beinart and Lukianoff share is a broadly liberal background.  Beinart is a former editor of The New Republic; before becoming president of the Foundation for Individual Rights in Education, Lukianoff interned at the ACLU of Northern California and served as the managing editor of the EnvironMentors Project in Washington, D.C.

In denouncing the student protestors’ actions, Beinart warns against the collapse on campuses of the “vital center” on free speech issues.  “Convinced that freedom of speech is an illusion denied them outside the university gates” he says, “they take revenge in the one arena where the balance of forces tilt their way.”

Writing about, and on the occasion of the 20th anniversary of the publication of, the classic book by Jonathan Rauch titled Kindly Inquisitors: The New Attack on Free Thought, Lukianoff offers this:

Of the many side effects of the retreat from free speech that Rauch predicted 20 years ago, one was that if we privilege feelings over free speech and allow claims of offense to slow or stop meaningful discussion, people will naturally abuse this ultimate trump card.  In the end, the societal bar for what is “offensive” will simply get lower and lower.  This “offendedness sweepstakes,” as Rauch has called it, does not take long to produce terrible or, often, absurd results.

Indeed it does not, as shown by the assault on free speech in the face of triumphant, not to say self-righteous, “political correctness” on the nation’s campuses and elsewhere.

As one commenter poignantly observed in reply to coverage of the Brown affair in Legal Insurrection : “Really scary real-life person prevented from expressing wrong views to delicate flower college students.  Fragile students saved from having to listen to upsetting opinion.  All is well in academia; students thoroughly prepared for real world now.” 

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils. A version of this article appeared in the online edition of USA Today on Nov. 6, 2013.

Brown University’s Campus Liberals vs. Free Speech

Posted in Free speech

 By guest blogger PETER BEINART, The Daily Beast, Oct. 30, 2013.    

 “Brown cultivates a spirit of free inquiry,” writes its President, Christina Paxson, on her website.  “Brown prizes the intellectual exchange that is sparked by a diversity of views and experiences.”

Tell that to Ray Kelly.  Yesterday the New York City police chief was prevented from speaking on Paxson’s campus by students angered by the NYPD’s racial profiling.  Those students have good reason to be angry.  Unfortunately, they’re the latest in a long line of campus activists who believe their anger trumps other people’s free speech.

Kelly is only the most recent victim.  In 2002, protesters prevented Benjamin Netanyahu from speakingat Montreal’s Concordia University.  In 2009, activists at the University of North Carolina shut down a planned speech by anti-immigration congressman Tom Tancredo.

There’s something deeper going on here.  On the surface, campuses like Brown’s seem hegemonically liberal.  But in my experience, that apparent consensus conceals a crucial gulf between students and faculty who hold left of center opinions but accept basic norms of fair play and students who consider freedom of speech a scam employed by the powers that be to perpetuate their racism/sexism/classism/imperialism/homophobia.  Convinced that freedom of speech is an illusion denied them outside the university gates, they take revenge in the one arena where the balance of forces tilt their way.  And they thus inject into their own campuses the totalitarian spirit they believe characterizes society at large….

Click here to read the rest of this article at The Daily Beast.

The Daily Beast

                                   

Peter Beinart is the editor of OpenZion.com and writes about domestic politics and foreign policy at The Daily Beast. He is also an associate professor of journalism and political science at CUNY and author of The Crisis of Zionism.

Five Myths About the Federal Shield Law

Posted in First Amendment, Free speech, Journalism

By guest blogger KURT WIMMER, ESQ., partner at Covington & Burling LLP in Washington, D.C., and chairman of The Media Institute’s First Amendment Advisory Council.

Free speech is the oxygen of the blogosphere.  Blogs, tweets and Facebook posts couldn’t have the profound influence they have rightfully earned in our new and diverse marketplace of ideas without a robust freedom to debate, to challenge, and even to be outrageous.  So it’s hardly surprising that when a congressional debate about protecting confidential sources mentions blogs, it touches a nerve.

That debate concerned the Free Flow of Information Act, which was approved by the Senate Judiciary Committee last month on a bipartisan, 13-5 vote.  If passed by Congress, the Act would be the first statute to protect journalists from being forced to identify their confidential sources in federal court.  It would build on the protections of the First Amendment (because no act of Congress, of course, can minimize those rights) and fix a serious bug in our constitutional system – multiple federal courts now have said that the only way for reporters to protect a confidential source is to go to prison indefinitely.  Many of our federal courts have held that the First Amendment simply does not allow a reporter to protect a confidential source.  That’s hardly a solution that reflects our country’s global leadership in free expression.  Although 48 states and the District of Columbia already provide such protection in state courts, Congress has never passed a federal shield law.  So the Judiciary Committee’s vote should give journalists reason for optimism, as Emily Bazelon of Slate has so persuasively described.

So why did debate on the Act touch such a nerve?  Because when the Act creates a new privilege, it has to define who can claim that privilege, and defining “journalist” in our diverse online environment is a sensitive task.  The way the Act accomplishes this delicate balance earned the endorsement of the Online News Association and other non-traditional journalists.  But this issue also prompted some commentators to spread myths about the Act.  For example, Free Press released a paper this month, “Acts of Journalism: Defining Press Freedom in the Digital Age,” which purports to analyze the bill.  Remarkably, however, the paper didn’t discuss the bill itself; indeed it is unclear whether its author has even read the bill.  Other bloggers, drawing from blogs rather than the Act itself, claimed the Act “is an attempt to carve out certain types of journalism that Congress is uncomfortable with,” and that it is “basically a licensing law.”

It’s time for some level-setting here, based on the novel concept of looking at what the Act actually says rather than simply echoing the conspiracy theories about how Congress is slighting the blogosphere, or about how the Act is weak-kneed and won’t protect national security reporters.  These claims are simply myths that don’t stand up to analysis.  In fact, the Act will protect journalists – whether they report on a blog or the New York Times, and is our very best chance to keep the people who are informing us from being treated as criminals for committing journalism.

Myth: The Free Flow of Information Act does not cover bloggers.

Fact: False.  Bloggers who practice journalism will be explicitly covered by the privilege.

Free Press writes that today’s “pamphleteers use iPhones and blogs instead of carbon paper, but their acts of journalism still deserve protection.”  That is, of course, correct, and the Act’s authors agree.  That’s why the bill explicitly includes people who disseminate news via websites, mobile apps, “or other news or information service (whether distributed digitally or otherwise).”  Although many state shield laws cover only traditional media, such as newspapers and broadcasters, the Senate bill is platform-agnostic and covers all journalists, regardless of how they distribute their news.

Some also believe the Act should cover all Americans, under the theory that anyone could be a “citizen journalist” and the First Amendment requires that everyone be given the same rights as journalists.  This is, of course, a classic “poison pill” advocated by those who really want to kill the bill (including some lawmakers who proposed such an amendment but also voted against the Act).  A privilege for everyone would mean a privilege for no one, because Congress would never pass an act that allows every single citizen in the United States to quash a subpoena.  The Act properly focuses on a medium-agnostic way to make sure it covers all those who are practicing journalism, but a suggestion that it cover all Americans is simply a smokescreen for those who would rather see the bill die.

Myth: Rather than attempting to define “journalist,” the bill should focus on defining the practice of journalism.

Fact: That’s exactly what the bill does.

Tricia Todd wrote in a Huffington Post blog that Congress “needs to craft a law that protects acts of journalism rather than targeting the messengers and intimidating sources.”  Similarly, Free Press discusses the danger of drawing “a line between who qualifies as a journalist for the purposes of the reporter’s privilege or shield-law protections.”  As an example, the paper cites the Second Circuit’s decision in von Bulow v. von Bulow, which held that the reporter’s privilege should focus on the journalist’s activities, rather than occupational title.

There’s just one problem with the Free Press criticism: The Free Flow of Information Act does, in fact, focus on people who practice journalism, regardless of their job title.  The bill covers people who gather information “with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest[.]”  That test comes directly from the Second Circuit’s opinion in von Bulow – the very test that Free Press advocates.

Myth: The bill would require the government to license journalists.

Fact: False.  The argument that “defining a journalist will lead to licensing” is as old as shield laws themselves.  But it’s just false – “journalists” have been defined in other laws dating back to 1900, and federal laws dating back to FOIA.  No “licenses” ever have been created under American law, and none could ever be required for journalism because denying a “license” would be a blatant First Amendment violation.

Rush Limbaugh and other critics have argued that the Free Flow of Information Act would create a de facto licensing system for journalists.  This could never happen because the First Amendment right to publish applies to everyone.  The “government” would not license journalists under the Free Flow of Information Act.  Independent, life-tenured judges would determine whether a journalist is able to claim an additional privilege under the statute to protect a source, but this is not a system of licensing.  It’s a system of determining who can resist an otherwise valid order to testify in federal court, just like courts always have done under the attorney-client privilege, the doctor-patient privilege, and the spousal privilege.

Nonetheless, some believe that once Congress passes a shield law, it will eventually permit only state-approved “journalists” to practice journalism and claim First Amendment protections.  It”s sort of like saying, “if they learn to make metal, they’ll build a bazooka.”  In fact, all of the state shield laws require judges to determine whether an individual is covered, and the federal Freedom of Information Act has defined “news media” for years for purposes of obtaining a fee waiver when requesting federal government records.  None of these laws has led to “licensing” of journalists.  (Any law that would “license” journalists would undoubtedly be unconstitutional and easily struck down.)

Myth: The bill would deprive non-covered journalists of their First Amendment rights.

Fact: False.  The Constitution stands above any law passed by Congress, and this law will not limit the First Amendment.

James Tracy, of Activist Post, wrote that under the Senate bill, “only salaried journalists will be given the free press protections guaranteed to all US citizens by the Constitution.”  Similarly, in a bizarre non-sequitur, the Free Press paper describes non-traditional journalistic activities, as if these activities would somehow be limited by the bill.  In the rare instance where an individual does not receive protection under the statute, that individual retains all of her First Amendment rights.  In fact, Congress does not have the power to pass a bill that would deprive people of their constitutional right to publish.  (And the Senate bill does not require a “salary” to claim its privilege.)

Myth: The bill would not protect national security reporters, because its “national security exception” denies the privilege to any reporting about national security or classified documents.

Fact: False.  The bill’s national security provisions are the most speech-protective to emerge from Congress’s nine years of working on this legislation.

The bill, in fact, would prevent courts or agencies from forcing journalists to disclose sources in national security leak investigations in the vast majority of cases.  The “national security” exception in leak cases is very narrow – it applies only if an independent federal judge finds that the disclosure would materially assist the federal government in preventing or mitigating an act of terrorism or other acts that are reasonably likely to cause significant and articulable harm to national security.  The bill would not require disclosure merely to identify the source for later prosecution.  And the bill explicitly states that the court cannot order disclosure of the source’s identity merely because that source is capable of disclosing more classified information in the future.  This “exception” for national security interests is narrowly tailored, and it will provide significant and important protections for investigative reporting on national security issues.

In all, I recognize that Internet memes are pretty hard to slow down once they begin.  But the meme that Congress is somehow seeking to undermine bloggers and to stop non-traditional journalists from being protected by the First Amendment is simply belied by the facts.  The best remedy might be to do something truly radical – try reading the bill.  And then look at the reporters, such as author and New York Times reporter Jim Risen, who right now are threatened with imprisonment for doing their jobs.  The next step is simple: Support the bill.

Note: Mr. Wimmer represents a 70-member coalition of associations and companies advocating for the Act.  This article appeared in the Huffington Post on Oct. 29, 2013.

Follow Kurt Wimmer on Twitter: www.twitter.com/kurtwimmer